Last week I assisted another instructor in delivering a 4-day course on interagency cooperation (section 7 consultation). It was a great class and included biologists from both the Bureau of Land Management and Fish and Wildlife Service. A combination of agencies always produces a more robust class due to the different missions and perspectives discussed. Action agencies have the very tough job of trying to move forward with projects demanded by their mission and funding while, at the same time, complying with many different environmental laws, not just the Endangered Species Act.

During the class the issue of “caused by” came up as it is used in the regulatory definition of “effects of the action” (50 CFR 402.02) and the associated terms of “but for” and “reasonably certain to occur”. (These terms also relate to construction of an incidental take statement.) This is always a difficult point in framing biological assessments and biological opinions. (I mentioned preamble language about these terms in an earlier post.) A guest instructor mentioned the case of Babbitt, Secretary of the Interior, et al. v. Sweet Home Chapter of Communities for a Great Oregon et al. This is a Supreme Court case from 1995 that examined the regulatory definition of Harm (50 CFR 17.3). In the opinion, Justice Sandra Day O’Conner, explored causation as it related to the concept of take of a listed species in the form of harm and significant habitat modification. The document is 50 pages long, but given the style and formatting of court opinions it doesn’t take long to read and is very worth reading. The discussion around causation is addressed most thoroughly at page 711-714. It is another source for how to think about the terms and their use.